President Donald Trump continues to fulfill his promise to appoint federal judges in the mold of the late Supreme Court Justice Antonin Scalia. In addition to filling Scalia’s vacancy with fellow originalist Neil Gorsuch, President Trump has added a record number of judges to the federal appellate courts. In late January, the Senate confirmed David Stras to serve on the Eighth Circuit Court of Appeals, bringing the total circuit court judges appointed during Trump’s first term to 13.

Liberals are terrified. They know, as The New York Times bemoaned in November, “the 12 regional appeals courts wield profound influence over Americans’ lives, getting the final word on about 60,000 cases a year that are not among the roughly 80 the Supreme Court hears.”

So far, the Left’s attempts to scuttle Trump’s conservative nominees have failed. In some cases, such as Sen. Dianne Feinstein’s much-maligned “the dogma lives loudly” attack on Seventh Circuit nominee Amy Barrett, these attempts have backfired. Now, with Senate Republicans refusing to allow Democrats to use blue slips to single-handedly veto Trump nominees, the Left is desperate.

This explains the horrifying decision of The New York Times’ editorial board to publish an op-ed piece vilifying Trump’s nominee to the Fifth Circuit Court of Appeals, Kyle Duncan. In it, Laverne Thompson portrays Duncan as responsible for her husband John’s imprisonment for murder. Her husband was wrongfully convicted and served 18 years in prison, including 14 on death row, before evidence prosecutors had withheld came to light and exonerated Thompson.

Duncan Is Not Responsible for the Wrongful Conviction

Duncan had nothing to do with Thompson’s criminal case. Duncan also had nothing to do with the prosecutors who withheld evidence from Thompson’s attorneys. Duncan’s only involvement came years later, after Thompson filed a civil lawsuit against the Orleans Parish District Attorney’s Office, arguing its failure to train prosecutors to disclose evidence to defense attorneys rendered the office liable for Thompson’s wrongful imprisonment.

A jury awarded Thompson $14 million in damages in this lawsuit. However, on appeal, the U.S. Supreme Court overturned the verdict, finding that the district attorney’s office as a governmental entity had no duty to “provide prosecutors with formal in-house training about how to obey the law.”

Duncan did not represent “the prosecutors who destroyed evidence of [Thompson’s] innocence,” as The New York Times captioned the accompanying photograph. He represented the district attorney’s office before the Supreme Court. Duncan argued not on behalf of or against Thompson’s murder charges, but about who should be punished for getting those charges wrong.

For this, Laverne Thompson condemns Duncan’s appointment to the federal bench: “[T]he positions Mr. Duncan argued and won are not the positions of a man who can suddenly become a fair referee in the dozens of similar cases that would come before him as a judge. Mr. Duncan’s confirmation could serve as a declaration to prosecutors that winning at all costs remains, as it has been far too often in the past, the path to success.”

Rod Dreher at The American Conservative exposed this argument, writing: “How does that work, anyway? How is it that the positions a lawyer defends in court render him unfit to be a judge? There is no logic here at all. Mrs. Thompson (or her ghostwriter) is relying entirely on guilt by association.”

Anger Is Fair. False Accusations Are Not

I don’t blame Laverne Thompson for her anger or for directing it at Duncan. Had prosecutors hidden evidence resulting in my husband’s wrongful conviction and absence from my life for 18 years, I would also condemn anyone within six degrees of separation for that unforgiveable injustice. The New York Times, however, has no excuse for publishing this misleading op-ed, which concluded: “No prosecutors were punished for their role in putting him in prison. Meanwhile, Mr. Duncan is being considered for a promotion.”

Well, The New York Times does have an excuse, exposed in Thompson’s op-ed when she details Duncan’s conservative bona-fides: “Mr. Duncan is best known for his work in Washington, D.C., as the former general counsel for the Becket Fund for Religious Liberty, a conservative organization that ‘defends religious liberty for all.’ He played a leading role in opposing the provision of the Affordable Care Act requiring employers to provide insurance coverage for contraceptives. Mr. Duncan also defended North Carolina’s photo ID law that the Court of Appeals for the Fourth Circuit wrote had targeted black voters ‘with almost surgical precision.’ He also defended Louisiana’s ban on gay marriage in several different courts before the Supreme Court prohibited state bans on gay marriage.”

Apparently The New York Times feels that misconstruing a man’s record is excusable when that man may wield power in ways they oppose. Opposing conservative policies and judicial nominees, however, is not a good excuse for allowing a man’s reputation to be wrongfully maligned. Desperation, though, does tell.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.